Citation Nr: 0032183
Decision Date: 12/11/00 Archive Date: 12/20/00
DOCKET NO. 97-19 683 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an increased rating for residuals of a gunshot
wound of the right forearm currently rated as 40 percent
disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Counsel
INTRODUCTION
The veteran had active service from December 1967 to January
1970.
This case is before the Board of Veterans' Appeals (Board) on
appeal from an August 1996 rating decision by the Los
Angeles, California Regional Office (RO) of the Department of
Veterans Affairs (VA) which denied entitlement to an
increased rating for residuals of a gunshot wound of the
right forearm. In July 2000, the veteran testified at a
personal hearing at the RO before the undersigned Veterans
Law Judge.
REMAND
The Board notes that on November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law defines VA's duty to assist a claimant in
obtaining evidence to necessary to substantiate the claim,
and eliminates from 38 U.S.C.A. § 5107(a) the necessity of
submitting a well-grounded claim to trigger VA's duty to
assist (thus superceding the decision in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded). These changes are
applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (to be codified as amended
at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107); see also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
In sum, the Board finds that further development is necessary
in this case to include further medical evaluation and
development of the record.
Historically, during service, in February 1969, the veteran
sustained a perforating gunshot wound through the right ulna,
an ulnar nerve contusion, and an ulnar artery laceration. X-
rays revealed a comminuted midshaft fracture of the ulna with
considerable loss of bone and no significant callus
formation. Several months later, the veteran underwent
neurolysis of the right ulnar nerve in the right forearm with
internal fixation and rib graft to the right ulna fracture.
The ulnar nerve was stimulated with no immediate return of
the nerve. In August 1969, the veteran underwent external
and internal neurolysis of the right ulnar nerve with return
of ulnar nerve function. The diagnoses were gunshot wound of
the right forearm, nerve fracture of the right ulna,
limitation of motion of the right elbow, laceration of the
right ulnar artery, paresis of the right ulnar nerve, painful
scars of the right forearm, and loss of pronation and
supination of the right hand.
In a January 1970 rating decision, service connection was
granted for gunshot wound residuals of the right forearm with
comminuted fracture of the ulnar and paresis of the right
ulnar nerve with limitation of motion of the elbow and
painful scars and partial loss of pronation and supination.
The veteran was assigned a 60 percent rating effective from
January 7, 1970. The veteran was rated under Diagnostic Code
5399-5307-5308. In a March 1980 rating decision, the veteran
was awarded entitlement to a total disability rating for
compensation based on individual unemployability.
The initial post-service VA neurological examination
conducted in January 1971 showed that the veteran had chronic
incomplete paralysis, motor and sensory, of the right ulnar
nerve; cicatrix on the volar aspect of the distal 2/3rds of
the right forearm, moderately symptomatic in its distal
portion; and cicatrix on the dorsal aspect of the distal
third of the right forearm. VA orthopedic examination showed
that the veteran had chronic residuals of a gunshot wound to
the right forearm with subjective symptomatology and
demonstrated objectively by cicatrices, limitation of range
of motion, and impaired grip and grasp of the right hand; and
residuals of a fracture of the right ulna, which had been
treated surgically.
The veteran was reexamined by the VA in December 1980. In
sum, the examination revealed some deformity of the veteran's
right forearm, limitation of motion of the right elbow joint
on flexion and extension, scars of the right forearm, an
absence of adduction and abduction of the right 4th and 5th
fingers, loss of sensation to touch and pain on the volar and
dorsal surfaces with the ulnar half of the right thumb,
paresthesia extending over the third right finger, some loss
of pronation and supination of the right forearm, decreased
muscle strength of the right arm as well as the fingers. The
diagnoses were gunshot wound to the right forearm with
comminuted fracture of the right ulna; ulnar nerve paresis;
and slight decrease in motion of the right elbow.
In a February 1981 rating decision, the veteran's 60 percent
disability rating was reduced to 40 percent effective May 1,
1981 and the veteran's a total disability rating for
compensation based on individual unemployability was
terminated on that same date. The veteran appealed these
actions to the Board, but in a May 1983 decision, the Board
upheld the RO's actions.
Recently, in March 1998, the veteran was afforded a VA
examination. At that time, the veteran complained of pain
extending from his right shoulder to his fingers with the
greatest amount of pain being from the shoulder to the elbow.
The veteran complained of pain on motion of the right elbow
and wrist. The veteran also reported having numbness of the
right 4th and 5th digits. The veteran also reported having
stiffness and increased fatigability of the right elbow,
forearm, wrist, and shoulder. The examiner examined the
right shoulder, right elbow, and the right wrist and hand.
X-rays were taken. The right shoulder showed limitation of
motion with pain, as well as a positive impingement test and
a positive Apley's scratch test; the right elbow showed an
old united fracture in the olecranon process and an old mid
ulnar fracture that had healed with a plate in it. There was
also limitation of motion of the right elbow with pain. The
right wrist and hand also showed limitation of motion with
pain and decreased strength. In addition, the examiner noted
that the veteran had a scar of the extensor surface of the
right forearm which was adherent to the underlying
structures, most likely a tendon.
In July 2000, the veteran testified at a personal hearing at
the RO before the undersigned Veterans Law Judge. At that
time, he indicated that his entire right upper extremity
disability causes pain. He indicated that he had no feeling
in the right 4th and 5th fingers. He also indicated that he
was right-handed and had reduced right grip strength. He
complained of a painful scar of the right forearm which
periodically became swollen. He related having restricted
motion of the right wrist. The veteran also indicated that
he was being treated at the VA outpatient clinic on Temple
Street in Los Angeles.
The veteran's right upper extremity disability has been rated
based on muscle damage under Diagnostic Code 5399-5307-5308.
The Board notes that the rating criteria for muscle injuries
were revised, effective July 3, 1997, during the pendency of
the veteran's appeal. Where the law or regulation changes
after a claim has been filed or reopened but before the
administrative or judicial process has been concluded, the
version most favorable to the appellant applies, absent
contrary intent. Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991. However, there were no substantive changes in the
rating criteria (in fact, the language and content is
virtually the same, just reorganized differently).
Pursuant to Esteban v. Brown, 6 Vet. App. 259 (1994),
separate manifestations of the same disability may be rated
individually if none of the symptomatology for any one of the
conditions is duplicative of or overlapping the
symptomatology of the other conditions. Pertinent to this
case, the veteran sustained a gunshot wound to the right
upper extremity. In this case, consideration must be given
to whether there is muscle injury, nerve injury, and/or
scarring due to the gunshot wound.
A review of the record shows that the veteran's disability
has basically been organized as one large disability and has
been rated under diagnostic codes governing muscle injuries
based on residual right wrist and hand/finger disabilities.
The record does not show that adequate consideration has been
given to residual disability to the right elbow and shoulder;
to the scarring of the skin which is tender and painful; and
to overall residual nerve damage pursuant to 38 C.F.R.
§ 4.124a.
Accordingly, the Board finds that the veteran should be
afforded VA orthopedic, neurologic, and scar evaluations in
order to thoroughly determine the full extent of the
residuals of his gunshot wound to the right upper extremity.
In addition, the examiner should give an opinion as to what
manifestations of the right upper extremity disability are
attributable to the service-connected gunshot wound injury.
With regard to the examinations, the Board notes that
evaluation of increased rating claims also requires
consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45,
where applicable. Under 38 C.F.R. § 4.40, functional loss
due to pain and weakness supported by adequate pathology and
evidenced by the visible behavior of the appellant is deemed
a serious disability. In the case of DeLuca v. Brown, 8 Vet.
App. 202 (1995), the Court expounded on the necessary
evidence required for a full evaluation of orthopedic
disabilities. In this case, the Court held that ratings
based on limitation of motion do not subsume 38 C.F.R. § 4.40
or 38 C.F.R. § 4.45. It was also held that the provisions of
38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid
consideration of a higher rating based on greater limitation
of motion due to pain on use, including during flare-ups.
Therefore, when evaluating musculoskeletal disabilities, VA
may, in addition to applying schedular criteria, consider
granting a higher rating in cases in which functional loss
due to limited or excess movement, pain, weakness, excess
fatigability, or incoordination is demonstrated, and those
factors are not contemplated in the relevant rating criteria.
See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at
204-7 (1995). However, in that regard, the Board notes that
the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45,
should only be considered in conjunction with the Diagnostic
Codes predicated on limitation of motion. Johnson v. Brown,
9 Vet. App. 7 (1996).
Finally, during his personal hearing, the veteran reported
that he had been treated at the Temple Street VA outpatient
clinic. Those records as well as any other outstanding
records should be obtained.
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instructions completely.
Accordingly, this matter is Remanded for the following
action:
1. The RO should obtain and associate
with the claims file all outstanding
records of treatment pertaining to the
veteran. This should specifically
include any outstanding records from the
Temple Street VA outpatient clinic and
any other source or facility identified
by the veteran. If any requested records
are not available, or the search for any
such records otherwise yields negative
results, that fact should clearly be
documented in the claims file, and the
veteran and his representative should be
duly notified. The veteran should be
informed that he may submit additional
medical records, also.
2. The veteran should be afforded VA
orthopedic, neurologic, and scar
examinations to determine the current
nature, extent, and manifestations of the
veteran's service-connected right upper
extremity disability. All indicated x-
rays and laboratory tests should be
completed. The entire claims file, to
include all evidence added to the record
pursuant to this REMAND, as well as a
complete copy of this REMAND, must be
made available to and be reviewed by the
physician(s) designated to examine the
veteran. The neurologic examiner should
indicate if the veteran has any residual
neurologic impairment of the right upper
extremity due to the gunshot wound of
that extremity the veteran sustained in
service. It should be indicated if the
veteran has complete or incomplete
paralysis of any nerve and if the
involvement is wholly sensory or if it
also causes functional impairment. The
scar examination should indicate if the
veteran has any tender or painful scars
and/or any scarring which causes
limitation of motion of the affected
joints of the right upper extremity. The
orthopedic examiner should perform range
of motion testing. In the description of
the results of this testing, the
orthopedic examiner should indicate in
degrees what normal range of motion is as
compared to the veteran's range of motion
of all affected joints. The orthopedic
examiner should also be asked to
determine whether the affected joints
exhibit weakened movement, excess
fatigability, or incoordination
attributable to the service-connected
disability; and, if feasible, these
determinations should be expressed in
terms of the degree of additional range
of motion loss due to any weakened
movement, excess fatigability, or
incoordination. The examiner should be
asked to express an opinion on whether
pain could significantly limit functional
ability during flare-ups or when the
affected joints are used repeatedly. It
should also, if feasible, be portrayed in
terms of the degree of additional range
of motion loss due to pain on use or
during flare-ups. The examiner should
give an opinion describing what
manifestations of the right upper
extremity disability are attributable to
the service-connected gunshot wound
injury.
3. To help avoid future remand, the RO
should ensure that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268 (1998).
4. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by the
Department, including, among other things,
final regulations and General Counsel
precedent opinions. Any binding and
pertinent court decisions that are
subsequently issued also should be
considered.
5. After completion of the foregoing
requested development, and after
completion of any other development
deemed warranted by the record, the RO
should consider the veteran's claim for
entitlement to an increased rating for
service-connected right upper extremity
disability taking into consideration all
applicable diagnostic codes. The RO
should specifically consider the
directives of DeLuca. If any action
taken is adverse to the veteran, he and
his representative should be furnished a
supplemental statement of the case that
contains a summary of the relevant
evidence and a citation and discussion of
the applicable laws and regulations. He
should also be afforded the opportunity
to respond to that supplemental statement
of the case before the claim is returned
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
D. C. Spickler
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).